GPSolo Magazine - September 2004

Domestic Relations Law Is The Child’s Therapist Part Of The Problem?

This article describes the appropriate role of a child’s therapist in a forensic context and the differences between court-related treatment and traditional psychotherapy. It suggests criteria for evaluating the performance and expertise of children’s therapists, critically evaluating declarations, and determining when a change of therapists is necessary. Practice tips for attorneys are also provided.

Treatment in the context of the court. Traditionally, psychotherapy has been viewed as a voluntary process initiated by the client for the purpose of making changes in his or her life. In treatment that has been ordered by the court or motivated by the client’s involvement in litigation, some or all of the traditional elements of voluntary participation may not apply. Adults may be directed into treatment or ordered to obtain and cooperate with treatment for their children. The choice of therapists or the issues to be addressed in treatment may also be ordered or restricted by the court. In some cases, a parent’s visitation or custodial rights are restricted until he or she demonstrates certain behavioral changes. A parent’s behavioral change may be motivated to advance a particular outcome in the custody dispute or to convince a third party that treatment is no longer necessary.

Particularly in court-ordered treatment, ongoing litigation also impacts the confidentiality of the treatment process. A therapist conducting court-related treatment may be expected to provide information to, for example, a child custody evaluator, guardian ad litem, child protective services, or the court itself. This diminished confidentiality may directly impact the amount or type of information provided to the therapist.

Whenever a child at the center of a custody case is in treatment, the therapist must be cognizant of the potential impact of the dispute and ongoing litigation on the treatment process. The challenge for the forensically informed therapist is to be aware that the information being brought into the treatment session could be intentionally or unintentionally distorted. A child’s perceptions and statements may be altered by external influences such as suggestive questioning, exposure to parental conflict, or exposure to a parent’s emotional needs. It is essential that the therapist learns to think forensically as well as clinically by critically evaluating all incoming information in light of the dynamics of the custody conflict. “Forensic thinking” represents the need to understand the larger competing systemic factors that affect treatment in the context of the court. It requires knowledge of relevant research regarding children’s adjustment to divorce, domestic violence, children’s suggestibility, the impact of parental conflict on children, child development, and the coping skills children need to adjust successfully as they mature.

Professional objectivity and balance. The forensically informed therapist makes every effort to maintain a balanced perspective and to support the child’s appropriate relationship with both parents. This includes respecting both parents’ rights to consent to treatment, to communicate with the therapist about their child’s needs, and to receive information from the therapist about the child’s progress. The two most important criteria of objective and balanced treatment are: the therapist’s ability to focus on and understand the family situation in which the child lives, including the impact of the family’s involvement with the legal system; and the therapist’s ability to identify, formulate, and actively explore rival, different, and plausible interpretations of the child’s behavior, statements, problems, and needs.

It is never in the child’s best interest for the therapist to take any position that does not support the child’s independent needs and relationships, or to express an opinion that exceeds the therapist’s knowledge and role in the case. This is not to say that a therapist should not request changes in parents’ behavior, nor that the therapist should be precluded from expressing an opinion that a parent may not agree with. In fact, an important part of the job of the therapist is to request changes in the child’s environment to support the child’s needs. It is important, however, that the therapist’s interventions and opinions be based on the child’s needs and coping abilities rather than on parental concerns that may be inconsistent with the child’s needs.

Supporting what children need—which is not always what they want. The therapist’s role is to support the child’s developmental needs, including the need to develop adaptive coping skills. It is essential that therapists critically examine information that is presented to them and assist children in relying on their own perceptions in establishing and developing relationships. Therapists can model such behavior by gently challenging inconsistencies in children’s statements in treatment and conveying an expectation that children resolve problems directly rather than simply avoiding them.

Considerations in sharing (or requesting) treatment information. Therapists working with court-involved children and families need to pay special attention to the issues of informed consent and the potential impact of disclosing, or declining to disclose, information about the scope, nature, and progress of treatment.

Therapists may have to address either the child’s feelings about the sharing of treatment information or, more often, a parent’s distress when the disclosed information or opinions do not conform to what the parent was hoping to hear. These issues can be managed by informing children and parents of the conditions under which the therapist may share, or be ordered to share, treatment information. This should occur both at the onset of treatment and when situations arise in which it may be necessary to disclose treatment information.

The treating expert—role boundaries and suggested guidelines of expertise. There are two types of expert witnesses: the treating expert and the forensic expert. The essential goal of a forensic evaluator is to gather information to answer specific psycholegal questions about a family’s functioning. The focus of the forensic assessment is driven by the needs of the court. The expectation is that the judicial officer will use aspects of the evaluator’s recommendations in determining a solution for the family. The psychologist performing this evaluation is appointed as a forensic expert and is authorized to offer opinions on psycho-legal issues such as parental capacity and the best custody arrangement for the child.

In contrast to the broad scope with which an evaluator views a family, the treating psychologist’s focus is narrower, more intimate, and more longitudinal. This perspective adds power to the therapist’s ability to track behavior and help a child or family master developmental challenges. As a result, treating psychologists may be well qualified to render clinical opinions on a client’s diagnosis, behavior patterns observed in treatment, a child’s progress toward developing healthy coping skills, changes in each parent-child relationship that would be supportive to the child, and related issues. Nevertheless, the treating therapist does not have the evaluation perspective or breadth of information that are inherent in the forensic expert’s role. As a result, it is not appropriate for the treating therapist to render opinions on psycholegal issues such as parental capacity and custodial arrangements.

Lyn R. Greenberg, Jonathan W. Gould, and Philip M. Stahl are in private practice in forensic and clinical psychology. Dianna J. Gould-Saltman is a partner at Gould-Saltman Law Offices, LLP.

for more information about the Section of Family Law

- This article is an abridged and edited version of one that originally appeared on page 241 of Family Law Quarterly, Summer 2003 (37:2).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.